ICBC Law

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Humerus Fracture Non-Pecuniary Damages Assessed at $110,000

Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, assessing damages for a comminuted fracture involving the left humerus (shoulder injury).

(Illustration provided courtesy of Artery Studios Ltd.)

Today’s case (Legault v. Brock Shopping Centre Ltd.) involved a slip and fall injury in 2005 in Kamloops, BC.  The Plaintiff was walking towards a business known as “Penny Pinchers” in Kamloops BC.  As he approached the shopping centre his foot slipped on ice and he stumbled forward falling “into the store front window“.  He suffered various injuries, the most serious of which was a fractured shoulder.

The Plaintiff was found 50% at fault for his own injuries for “not observing the ground conditions beneath his feet as he approached the sidewalk“.  The Defendant owner was also found 50% at fault for not clearing the ice with the Court finding that “the Defendant owner failed to respond to two calls from the tenant to address the condition of the parking lot.  Responding to one of these calls would likely have appraised the owner of the melting and freezing conditions that also affected the sidewalk margin area“.

The Plaintiff’s orthopaedic surgeon gave the following evidence with respect to the severity of the injury:

Mr. Legault slipped and fell through a plate glass window at a shopping mall. He sustained a number of small lacerations to his upper extremities and his lip which were sutured in the emergency department. The main impact occurred on his left shoulder and he was diagnosed with a proximal humerus fracture…Radiographs and CT scan performed December 6, 2005, revealed a comminuted intraarticular fracture of the proximal humerus with slight superior and posterior displacement of the greater tuberosity….

Mr. Legault has developed post traumatic arthritis of his left shoulder most probably secondary to a fracture sustained December 6, 2005. Although the symptoms of pain and stiffness due to arthritis may plateau, it is possible that he may experience progressive symptoms in the shoulder as time passes. As arthritis is an irreversible condition, Mr. Legault has a permanent impairment. He is likely to experience increased symptoms with repetitive activity, overhead activity, and activities which load the shoulder joint including use of vibratory tools or machinery, or heavy lifting. Surgical options for shoulder arthritis include arthrpacopy and debridement or hemi or total arthroplasty. The results of these procedures for post traumatic arthritis (as compared to degenerative osteoarthritis or rheumatoid arthritis, for example) are less favorable. In this particular patient, his complication rate would be significantly increased due to his size and longstanding diabetes.

The Plaintiff’s total damages were assessed at $354,311 but this award was cut in half to account for the plaintiff’s contributory negligence.  In assessing non-pecuniary damages of $110,000 for the Plaintiff’s shoulder injury the Court found as follows:

I am satisfied that he has suffered an injury that has resulted in a permanent partial disability and will permanently affect his enjoyment of life on a daily basis, causing him difficulty with self care hygiene, dressing, moving up and down stairs, marital intimacy, home maintenance tasks, and driving. The physical injury has also made it more difficult to manage his obesity and other health issues related to fitness. His wife testified that she feels as if she has lost her husband entirely.  He was formerly able to lift and carry heavy automobile components and use heavy power tools in the course of working on vintage cars, which was his main interest in life; but he is unable to do that and has lost much of his zest for life.

[51] The plaintiff has referred me to cases where non-pecuniary awards in the range of $125,000 to $150,000 were made and the defendant relies on cases in the range of $70,000 to $75,000. I assess Mr. Legault’s loss under this head of damages at $110,000, which is subject, of course to the 50/50 apportionment of liability, as will be the case with the awards under the remaining heads of damage.

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